Legal Methods (Prof. Cohen) – Class Comments on Assignment 2
November 18, 2005
Comments for Everyone
Below are comments on each paper. I’ve kept the grading anonymous but structured comments below on all the papers so that everyone can benefit from editorial remarks pertinent to each person’s assignment. You can learn a lot about how to do this by reviewing specific critiques below of other students’ assignments.
A word of warning: I’ve heard some are working on the assignments in groups. This violates the assignment instructions, which explicitly state: “ This is an individual and not a collective exercise.” It also constitutes cheating. Those students who violate the rules can suffer severe academic consequences. At the same time, I’m sure people have heard the expression “you’re only cheating yourself.” You are all adults and expected to self-monitor. You are expected to uphold ethical standards for your profession. My opinion is that you pay the price on one level or another. For the Christian perspective, read Crime and Punishment by Dostoevsky. You have to make your own choices in this world—make sure they are the ones that serve your highest sense of integrity.
On a related note, I’ve become aware of a mindset that goes like this: ‘The goal is to figure out what (idiosyncratic) format the professor wants, regurgitate that at all costs, get the A, and sit back.’ You may have noticed our class discussions are designed to break that mold. You have to learn to empower yourself, to garner sufficient information to self-critique, edit, analyze, synthesize, construct, persuade.
The comments below are addressed to that end.
Many are much improved since last time, some less so. Here are some specific suggestions regarding the assignment.
In setting out the procedural history, include the various claims brought by plaintiff. Here, the Schneiders asserted four claims against Dr. Revici and the Institute: (1) fraud, premised on Dr. Revici's alleged promise to cure Mrs. Schneider of breast cancer; (2) medical malpractice; (3) a claim for lack of informed consent under N.Y. Pub. Health Law § 2805-d; and (4) a derivative claim (asserted by Mr. Schneider) for loss of consortium.
Include the full procedural history, here as follows: After the district judge refused to charge the jury on the affirmative defense of express assumption of risk, the jury returned a verdict for the plaintiffs on the medical malpractice claim, and a loss of consortium claim. The jury awarded Edith Schneider and her husband $ 1 million and $ 50,000 respectively. Because the jury found that Mrs. Schneider was equally responsible, through her own culpable conduct, for the damages she suffered, the awards were halved to $ 500,000 and $ 25,000, pursuant to New York's comparative negligence statute, N.Y. Civ. Prac. L. & R. 1411. On appeal, Dr. Revici and the Institute challenge the district court's refusal to charge with respect to an alleged covenant not to sue and express assumption of risk as affirmative defenses, either of which would serve as a total bar to recovery. The Schneiders also argued that numerous evidentiary rulings were erroneous.
In this assignment I was less concerned with the evidentiary rulings, as the case is better known for its stance concerning assumption of risk. You could have just picked one of the evidentiary rulings and canvassed it. Most students did all right on this point.
Let’s discuss the covenant not to sue. We know that New York law recognizes the efficacy of a covenant not to sue in the context of medical treatment.
The issue in Schneider is whether the court should uphold a covenant not to sue in the context of medical treatment where: (a) the form was not labeled a covenant or agreement not to sue but was instead captioned "CONSENT FOR MEDICAL CARE,’ and (b) the one paragraph of the consent form bearing on legal liability ("release . . . from all liabilities") could have been understood only to relinquish claims currently existing, rather than to promise not to sue in the future on claims that may subsequently arise.
That’s not a run-on sentence. The structure is sufficiently clear that a reader can understand what’s at stake. Moreover, another lawyer can understand exactly why the purported covenant not to sue may have been inadequate.
I’ve urged students at least this semester to drop the procedural part of the issue and holding. The reason is that students tend to get lost in “the court erred” and the like. I want you to get to the heart of the dispute and if you meander into procedural issues without having sufficient background to understand them, you will lose focus.
Later you can incorporate procedural matters into the statement of the issue. For example, here the question could be restated with its procedural focus as: Whether the trial court erred in submitting a claim for medical malpractice to the jury where patient had signed a purported covenant not to sue, but (a) the form was not labeled a covenant or agreement not to sue but was instead captioned "CONSENT FOR MEDICAL CARE, and (b) the one paragraph of the consent form bearing on legal liability ("release . . . from all liabilities") could have been understood only to relinquish claims currently existing, rather than to promise not to sue in the future on claims that might subsequently arise.
It’s true that: “The district judge did not err in declining to submit the covenant not to sue issue to the jury.” But this tells another lawyer nothing about what happened in the case, nor why the covenant not to sue was inadequate. Remember in your issue and holding to apply the relevant law to the relevant facts.
The court clarifies its rationale as follows: “A covenant not to sue . . . must be strictly construed against the party asserting it. Moreover, its wording must be 'clear and unequivocal.’” You can work it out: think about how the case might play out in real life. Courts are concerned about patients signing agreements promising not to sue their doctors; judges don’t want to allow docs to get away with negligence. In order for such agreements to be enforceable, they have to be very clear, so patients know exactly what rights they’re giving up. Make sure you can state the rationale in your own words, using legal language as appropriate. Do not simply string a bunch of cases together or dump in language from the opinion.
Let’s turn to the assumption of risk issue. The court tells us it holds that “there existed sufficient evidence -- in the language of the Consent for Medical Care form that she signed, and in testimony relating to specific consent informed by her awareness of the risk of refusing conventional treatment to undergo the Revici method -- to allow the jury to consider express assumption of risk as an affirmative defense that would totally bar recovery.” The court goes on: “It was therefore error for the district court to deny the defendants' request for a jury charge on the issue, and we reverse and remand for that reason.”
In my own words, the Schneider court held that where plaintiff, a patient, signed a form consent for medical care releasing the physician “from all liabilities,” agreed to refuse conventional cancer care and instead undergo a non-conventional medical treatment, and manifested awareness of the risk of this approach, the jury could consider whether plaintiff had expressly assumed the risk of injury, thus barring recovery for malpractice.
I’ve stated the holding with sufficient specificity that another lawyer can tell exactly what facts contributed to the court’s decision that plaintiff’s actions could constitute express assumption of risk (completely barring recovery).
As its rationale for this holding, the court gives us some important language: “We see no reason why a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment. While a patient should be encouraged to exercise care for his own safety, we believe that an informed decision to avoid surgery and conventional chemotherapy is within the patient's right ‘to determine what shall be done with his own body.’” Subsequent cases will likely quote this section of the opinion.
It’s true that the district court held that express assumption of risk was unavailable as a defense to medical malpractice under New York law, and that the court of appeals overturned the district court’s ruling on this point. It is also true that to reach its conclusion that the district court erred on this point, the court of appeals had to wade through cases and legislation. Of equal significance, though, to the court of appeals was the task of determining whether there was sufficient evidence in this case to warrant an instruction of instruction to the jury that if plaintiff had expressly assumed the risk of injury, her recovery would be completely barred. That is why I took the holding to the next level of specificity, incorporating the salient facts. In subsequent cases we’ll want to know: what evidence would be enough? What facts will lead someone to conclude that there was an express assumption of risk in the next medical malpractice case? Those who are still confused on this point should re-read the discussion in Neumann (5th ed.) on pp. 45-46. Among other things, Neumann advises: “allude to enough of the determinative facts to make the issue concrete.”
A word about the case note: many students simply agreed with the court’s solution, stating that the court went to great lengths to craft its opinion. It’s fine to agree with the court, but again it is your own analysis that counts.
One student wrote: . “An individual should be free to choose an informed [medical] decision insofar as he is competently aware of all the risks involved, and the law should honor a contract based on its clear and express terms, agreed to by the parties involved, even where it might be detrimental to one of the parties.” This clearly and elegantly shows the student’s understanding of what was at stake. This same student argued that the covenant not to sue should have been enforced, because even though it was not labeled “COVENANT NOT TO SUE,” the language could lead an ordinary patient to understand she was releasing the physician from liability for future action, and in addition, the physician testified that he went to great lengths to explain the form to Mrs. Schneider. This shows original thinking.
The student went on to argue that if Mrs. Schneider was sufficiently aware her choices as to assume the risk of the procedure, she “was fully aware of what she was doing and as such …aware of what the contract that she signed dictated;” thus, it was “hypocritical” (or unjustified) for the court to uphold the assumption of risk defense but not the covenant not to sue. Again, this shows the kind of original, critical analysis that makes a case note sparkle.
Italicize case names you discuss such as Colton and Schneider.
Under “Likely Future Interpretation of the Holding,” what I wanted students to do was not to give a canned “narrow” and “broad” statement of the holding, but rather to imagine how future courts might use Schneider. My bet is courts will open up the ability of patients to access (and physicians to offer) alternative therapies by allowing the parties to make clear choices (and binding agreements) concerning allocation of liability in cases of patient injury.
Please review all the comments below, not just your own. Please come see me after class if you have any questions as to how to further improve.
A number of students need to work on improving their basic writing skills. For some it is simply a matter of stripping away legalese and unnecessary clutter; for others, basic expression needs work. This is an area in which I can provide limited advice, even in Legal Writing next semester; as Dean McIntosh pointed out, there is a separate course devoted to writing skills (whether or not the course is working properly is for other channels). The comments below include this advice to one student: “The analysis of the court’s solution—there’s no other way to put it—is cluttered and doesn’t make sense. The only remedy is to read it aloud for sense. Say what you want to say, no more and no less. We can go over this together, or you can read it to a classmate and try, as an exercise, to rewrite for clarity. That would have great value.” Students who find their marks at the margin should think about working hard to correct basic issues of written expression. They may pass this course but find the struggle continuing down the line.
I’ve noted below: “Once you lose the reader, it’s hard to get the reader back. Write for the reader, write for the reader, and write for the reader.” The critical skill of re-reading your own work and editing for clarity is one you must acquire. Do whatever remedial work is necessary during the break, as this will pay off. I’ve tried to give some tips below.
At the same time, a number of students have clear and lucid writing and are progressing to the next level where their own mastery shortly will begin to shine. Keep working, keep at it, and take your gift all the way.
To summarize, in general, to improve, two skills are critical: (a) develop your own analysis, and (b) write clearly.
Finally, don’t focus on the grade—focus on what you can learn.
Student “A”
Do not compromise your student anonymity, please.
Facts – watch commas. Don’t overload your sentences with stops that don’t belong there.
Please proof (“trail”). Try using the “search” function on your computer.
Combine procedural posture into procedural history, then write so it makes sense to the reader.
Why was the affirmative defense of assumption of risk “inapplicable” to the case?